Ayscue v. Griffin

• Decision Date: 18 December 2018
• Docket Number: No. COA18-379,COA18-379
• Citation: 263 N.C.App. 1,823 S.E.2d 134
• Parties: Emily Urquhart AYSCUE, Thomas Mizell Urquhart, Jr. and Betsey Derr Urquhart, Plaintiffs, v. Burges Urquhart GRIFFIN, Jr. and Lowgrounds Land Co., LLC, Defendants.
• Court: North Carolina Court of Appeals

263 N.C.App. 1

823 S.E.2d 134

Emily Urquhart AYSCUE, Thomas Mizell Urquhart, Jr. and Betsey Derr Urquhart, Plaintiffs,

v.Burges Urquhart GRIFFIN, Jr. and Lowgrounds Land Co., LLC, Defendants.

No. COA18-379

Court of Appeals of North Carolina.

Filed: December 18, 2018

Batts, Batts & Bell, LLP, by Joseph G. McKellar and Joseph L. Bell, Jr., Rocky Mount, for plaintiff-appellant Emily Urquhart Ayscue.

Jones & Carter, P.A., by Ernest R. Carter, Jr., Ahoskie, and Cecelia D. M. Jones, for defendant-appellees.

TYSON, Judge.

Emily Urquhart Ayscue ("Ayscue") appeals from an order determining the location of the boundary division line between her property and an adjoining tract. Ayscue also appeals from an order denying her Rule 60 motion for reconsideration. See N.C. Gen. Stat. § 1A-1, Rule 60 (2017).

I. Background

This case concerns a disputed boundary line between neighboring tracts of real property, both of which are located along a portion of the Roanoke River. Ayscue, Thomas Mizell Urquhart, Jr., and Betsey Derr Urquhart (collectively, "Plaintiffs") own one tract as tenants-in-common and an adjoining tract is owned by Lowgrounds Land Co., LLC ("Lowgrounds"), a North Carolina limited liability company. Burges Urquhart Griffin, Jr. is a member/manager of Lowgrounds. Plaintiffs and the individual defendant, Griffin, are family members.

Both Plaintiffs' and Defendants' tracts were originally portions of the estate of Burges Urquhart, who died in 1903. Plaintiffs and Griffin are descendants of Burges Urquhart. Upon Burges Urquhart's death, his real property was divided among his five children. Burges Urquhart's real property was divided through a plat map of the entire property prepared by surveyor, William Parker, and dated 5 December 1905 ("the Parker Plat"). The Parker Plat was filed in the Bertie County Registry and is recorded at Book 138, Page 183.

In 1965, L.T. Livermon, Jr., R.L.S., drew a new map of the Burges Urquhart tracts shown on the Parker Plat without re-surveying the property and recorded his map in the Bertie County Registry at Map Book 2, Page 106 ("the Livermon Map"). The 1965 Livermon Map includes an express disclaimer: "There was no error of closure calculated." It is unclear if the boundary lines of the respective tracts shown, including the subject properties, as depicted on the 1965 Livermon Map actually close.

In 2013, Plaintiffs hired surveyor Mark Pruden, R.L.S, to prepare a survey of the disputed boundary line as shown on the Parker Plat. Pruden conducted an initial survey and then a corrected version ("The Pruden Survey"). The Pruden Survey is recorded in the Bertie County Registry at Map Book 13, Page 820. The Pruden Survey displays the boundary line between the parties' properties lying between two points east of a pond called "Blue Hole." Pruden testified in a deposition that he had determined the boundary line of the respective tracts by using the same bearing as the boundary line on the 1905 Parker Plat. The Pruden Survey depicts the common boundary line of the respective properties as having the bearing of N 27°30'00? W, which is equivalent to the bearing of "S 27 ½ E" for the boundary line shown on the Parker Plat. The Pruden Survey does not depict the boundaries of all of Plaintiffs' and Defendants' properties, does not demonstrate any error of closure, and shows only the disputed boundary line and southern border of Plaintiffs' property. Pruden's testimony does not indicate he surveyed each of the parties' tracts in their entirety.

Defendants hired surveyor, Randy Nicholson, R.L.S., to map the location of the boundary line in late 2013. Nicholson's map ("the Nicholson Map") shows the purported boundary line as contended by Plaintiffs and Pruden. The Nicholson Map indicates and locates the actual boundary line as lying between two points situated west of the boundary line shown on the Pruden Survey and as contended by Plaintiffs.

On 26 February 2014, Plaintiffs filed a complaint alleging Defendants "came onto Plaintiffs' property without permission and cut down trees and other vegetation on approximately three and one half acres ... of Plaintiffs' property near the boundary line between Plaintiffs' and Defendant Lowgrounds's property" shortly before April 2013.

Plaintiffs' complaint asserts claims for quiet title, trespass to land, and recovery of statutory double damages for "the value of the timber, shrubs, wood and trees injured, cut or removed from their [p]roperty" pursuant to N.C. Gen. Stat. § 1-539.1. Plaintiffs' complaint demands "a jury trial on all issues of fact to which they are so entitled."

Defendants filed their answer and asserted, in part, that the property Plaintiffs' alleged Defendants trespassed upon is actually owned by Lowgrounds. Defendants also demanded in their answer "a jury trial on all issues of fact to which they are so entitled."

On 11 March 2015, the trial court entered a consent order ("the Consent Order") to appoint surveyor Paul Toti, R.L.S., to "go upon the lands, find, mark and prepare a plat showing where on the ground said boundary lines exist " as shown on the Parker Plat. (Emphasis supplied). The Consent Order provides, in relevant part: "The parties agree that the survey, when completed may be used by the Court in determining the issues presented in the instant action."

On 1 July 2016, before Toti had completed his survey, Plaintiffs filed a motion in limine to request an order instructing Toti to disregard the Nicholson Map in preparing his survey. Plaintiffs argued the line depicted on the Nicholson Map, which Defendants contend is the correct line, was based upon incompetent evidence, which Toti should not have considered in conducting his survey.

Plaintiffs alleged that Toti presumed that the Nicholson Map was prepared by Nicholson after conducting an actual survey. Plaintiffs attached the deposition transcript of Nicholson to their motion in limine and argued Nicholson did not perform an "actual survey" to prepare his map, They assert Nicholson located and mapped the physical markings, stakes, and paint marks on trees that he had found and located in the field.

On 7 November 2016, the trial court entered an order concluding Plaintiffs' motion in limine was premature because Toti had not yet completed his survey, and dismissed their motion without prejudice. The trial court's order further stated: "THAT upon the filing of said Toti Survey, should plaintiffs' determine that their motion should then be heard, the Court will entertain plaintiffs' motion at that time."

After Toti had completed and presented his survey, Plaintiffs re-filed their motion in limine and the trial court held a hearing on 16 March 2017. At the hearing, the court heard the testimony of Thomas Mizell Urquhart, Jr., and Toti. At the conclusion of the hearing, without ruling upon Plaintiffs' motion in limine , the trial court orally rendered a ruling that the boundary line advocated by Defendants, as shown on the Nicholson Map, was the correct boundary line between the parties' properties.

The trial court entered a written order on 1 December 2017, determining the final division boundary line between the parties' properties ("the Division Order"). The trial court made, in part, the following findings of fact:

1. That pursuant to the Order of the court entered in this matter by consent of the parties, Paul J. Toti, obtained documents related to the assignment made in the Order from the records available at the Courthouse in Bertie County, including copies of the 1905 Parker Map as recorded in the office of the Register of Deeds of Bertie County ... and other maps recorded in the office of the Register of Deeds of Bertie County prepared by Mark Pruden and Randolph Nicholson, both surveyors previously employed by the opposing parties in this matter.

2. That as a result of the research and the documents procured by Paul J. Toti, particularly relative to the order to conduct a survey of the real property shown on the 1905 Parker Map relative to the properties owned by the parties known as "No. 1 Gorden Land" and "No. 2 Gorden Land"(hereinafter the Property) and to go upon the lands and find, mark, and prepare a new plat showing where on the ground said boundary lines exist as depicted in the 1905 Parker Map, Paul J. Toti did go upon the lands and did, using his knowledge and skills as a registered land surveyor, attempt to comply with the Order by providing to the Court a map of his survey and he did file and submit to the Court such map of his survey of the subject Property, hereinafter termed Court Ordered Survey, showing thereon, in addition to exterior boundary lines of the whole tract as it currently exists, but also indicating thereon, two distinct sets of courses and distances which the parties, on maps filed by Pruden and Nicholson, have contended to be the correct division boundary between the properties of the parties[.] (Emphasis supplied).

3. That in the process of completing the work assigned by the Court, Toti was not able to re-create the 1905 map in large part because of deficiencies with certain portions of that map that omitted distances, courses, and other matters that would have provided clear and documented evidence of the division line in question, particularly his inability to locate the "warehouse" which was noted on the 1905 [Parker] map as a relevant physical monument for the division line in question.

4. That in the review of the Pruden maps and Nicholson maps, relative to the process, Toti indicated that while the Pruden maps were mathematically correct, they were not surveys of the relevant tracts and they did not attempt to "close" or otherwise graphically resolve the issues that were obvious from the deficiencies found in attempting to re-create on the ground the 1905 map as directed to him in the Court's prior order.

5. That Toti stated that in his professional opinion, the Nicholson map of the property of the Defendant, Lowgrounds Land Co., LLC, was a

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